Considered and decided by Hudson, Presiding
Judge; Stoneburner,
Judge; and Dietzen,
Judge.

S Y L L A B U S

A parent’s consent to permanent transfer of legal and
physical custody of a child in exchange for a county’s promise not to pursue
termination of parental rights, based on the parent’s agreement that the files
and records before the district court established the statutory criteria for
the transfer, is an involuntary transfer of custody for purposes of the
application of a presumption of palpable unfitness to be a party to the parent
and child relationship under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), in a
subsequent proceeding.

O P I
N I O N

STONEBURNER, Judge

In this consolidated appeal, a mother and father
challenge the termination of their parental rights, asserting that the district
court erred by applying the presumption of palpable unfitness in Minn. Stat. §
260C.301, subd. 1(b)(4) (2004), to each of them. Mother and father also argue that the record
as a whole rebuts any presumption of unfitness.
Father also challenges venue in KoochichingCounty. Because (1) the district court did not apply
the presumption of palpable unfitness to father and did not err in applying the
presumption to mother; (2) the record does not rebut the presumption of mother’s
unfitness; (3) the record is sufficient to support the termination of parental
rights as to father; and (4) venue was appropriate, we affirm.

FACTS

Appellant A.M. (father) is a registered sex offender, who
was convicted in Hawaii
in 1997 of two counts of sexual assault in the third degree for, in 1995, placing
his hand on the vagina of a child who was less than 14 years old. The district court found that this crime
would constitute criminal sexual conduct in the second degree under Minn. Stat.
§ 609.343, subd. 1(a) (2004), and that
finding is not disputed on appeal. Father
moved to KoochichingCounty, where his parents reside, and supervision of
his probation was transferred to KoochichingCounty. Father successfully completed sex-offender
treatment in Minnesota
on January 4, 2001, and was discharged from probation on January 28, 2002.

In June 2003, the district court transferred permanent
legal and physical custody of three children of appellant A.S.[1]
(mother) to her mother and step-father (maternal grandparents). Mother consented to the transfer on the
record, on the day a permanency trial was scheduled to begin, in exchange for
Koochiching County Social Services’ agreement not to seek a TPR. Mother agreed that the entire record in that
proceeding, which was incorporated by reference into the district court’s
findings and disposition order, established the necessary statutory criteria
for permanent transfer of custody.[2]

Mother and father met through mother’s then-husband, Chad
Story. Story and father met in sex-offender
treatment that both were attending as a condition of probation for sexual
offenses against children. Mother became
pregnant by father[3] and
delivered a daughter on June 4, 2004, in Duluth,
where mother had gone for medical treatment related to the pregnancy. Because of prior involvement with mother and
concern about father’s prior conviction, the county obtained an order for
emergency protective care of appellants’ newborn daughter, removed her from the
hospital in Duluth, and placed her in foster
care in KoochichingCounty. The county then initiated a CHIPS action and
a petition for TPR, asserting both that mother is palpably unfit to be a party
to the parent

and child relationship
under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), and that father
had been convicted of a crime that falls under the definition of egregious harm
under Minn. Stat. § 260C.301, subd. 1(b)(6).

At the TPR trial, father and mother both asserted a Fifth
Amendment privilege against self-incrimination and declined to testify. Mother did not present any evidence. Father presented one witness on his behalf.

The district court concluded that the presumption of
palpable unfitness in Minn. Stat. § 260.301, subd. 1(b)(4), applies to mother
and was not rebutted. The district court
also concluded that father poses a serious threat to the physical and sexual
safety of the child due to having inflicted egregious harm on a child, as
defined in Minn. Stat. § 260C.007, subd. 14(10) (2004). The district court found that it is in the
best interests of the child to terminate mother’s and father’s parental
rights. These appeals followed and were
consolidated by this court.

ISSUES

I. Was venue
appropriate in KoochichingCounty?

II. Did
the district court err by finding that the transfer of permanent custody of
mother’s other children pursuant to an agreement between mother and the county
was an involuntary transfer, triggering the presumption of palpable unfitness
under Minn. Stat. § 260.301, subd. 1(b)(4) (2004), that was not rebutted?

III. Did the
district court err by terminating father’s parental rights?

ANALYSIS

I. Venue

Father argues that the Koochiching County District Court
lacked jurisdiction because appellants and the child were in St. LouisCounty
when the child was removed from appellants’ care. Father relies on Minn. Stat. § 260C.303
(2004), which provides that venue for TPR proceedings “is either in the county
where the child resides or is found,” unless a protective order is in force at
the time a petition for TPR is filed, in which case “the court making the order
shall hear” the TPR proceeding unless it transfers the proceeding. But in this case, a protective CHIPS order
issued by KoochichingCounty was in force at
the time the petition for TPR was filed.
And Minn.
Stat. § 260C.121, subd. 1
(2004), provides that “[w]hen it is alleged that a child is in need of
protection or services, venue may be in the county where the child is found, in
the county of residence, or in the county where the alleged conditions causing
the child’s need for protection or services occurred.” Although the child was born in
Duluth, the record demonstrates that mother and father are
residents of KoochichingCounty and that is where
they intended to reside with the child.
Appellants have not challenged the district court’s finding that the
parties were only in St. LouisCounty for medical
purposes. We find no merit in father’s
argument that venue of the TPR was not appropriate in KoochichingCounty.

II. Standard of
review

An appellate court reviews a TPR to determine whether the
district court’s “findings address the statutory criteria and whether those
findings are supported by substantial evidence and are not clearly
erroneous.” In re Welfare of Child of W.L.P.¸ 678 N.W.2d 703, 709 (Minn. App. 2004). Parental rights may only be terminated for
“grave and weighty reasons.” Id. We defer to the district court’s findings, but
exercise “great caution” in proceedings to terminate parental rights and
examine the evidence to determine whether it is clear and convincing. Id. “Considerable deference is due to the district
court’s decision because a district court is in a superior position to assess
the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393,
396 (Minn.
1996). The paramount consideration is
the best interests of the child, and these interests are balanced against
parental rights. In re Welfare of M.D.O., 462 N.W.2d 370,
378 (Minn.
1990).

The county must prove its case by clear and convincing
evidence. Minn. R. Juv. Protect. P. 39.04. But when a parent is determined to be palpably
unfit under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), the burden shifts to
the parent to prove that he or she is fit to parent the child. W.L.P.,
678 N.W.2d at 709.

III. Presumption
of palpable unfitness as applied to mother

A district court may terminate parental rights on the
basis of one or more of the nine grounds listed in Minn. Stat. § 260C.301,
subd. 1(b). One of the statutory grounds
for TPR is

that a parent
is palpably unfit to be a party to the parent and child relationship because of
a consistent pattern of specific conduct before the child or of specific
conditions directly relating to the parent and child relationship either of
which are determined by the court to be of a duration or nature that renders
the parent unable, for the reasonably foreseeable future, to care appropriately
for the ongoing physical, mental, or emotional needs of the child. It is presumed that a parent is palpably
unfit to be a party to the parent and child relationship upon a showing that
the parent’s parental rights to one or more other children were involuntarily
terminated or that the parent’s custodial rights to another child have been
involuntarily transferred to a relative under section 260C.201, subdivision 11,
paragraph (e), clause (1), or a similar law of another jurisdiction.[4]

Minn. Stat. § 260C.301,
subd. 1(b)(4).

Mother argues that
because she consented to the transfer of permanent custody of her other
children, the transfer was not involuntary, and the district court erred by
applying the presumption of palpable unfitness to her. We disagree.

The juvenile court may voluntarily terminate the rights
of a parent to a child “with the written consent of a parent who for good cause
desires to terminate parental rights.” Minn.
Stat. § 260C.301, subd. 1(a). Under caselaw,
good cause for voluntary termination exists under a variety of circumstances
usually related to the best interests of the child. See
W.L.P., 678 N.W.2d at 712 (citing cases finding good
cause based on best interests of child but holding good cause did not exist
when sole motivation was avoiding financial burden of supporting
children). There is no specific
statutory provision for voluntary

transfer of permanent
legal and physical custody to a relative but because such a transfer of custody
is a statutorily approved permanency disposition, we conclude that a parent may
voluntarily transfer custody to a relative for good cause.

In W.L.P.,[5] we
rejected a blanket rule that an admission to an involuntary TPR petition
converts the petition into a voluntary petition. Id. at
712. We noted that circumstances that
justify involuntary termination under section 260C.301, subd. 1(b), do not
necessarily justify voluntary termination under section 260C.301, subd. 1(a),
and we stated that there are “at least” two procedures parents can utilize to
convert an involuntary petition into a voluntary petition. Id. We said parents can;

(1) file a new
petition supported by a factual basis articulating good cause and cite to Minn.
Stat. § 260C.301, subd. 1(a), as the statutory authority for the petition; or
(2) formally amend the original petition to cite to Minn. Stat. § 260C.301,
subd. 1(a), as the statutory basis for the petition.

Id.We conclude that the
same reasoning applies to a permanent transfer of custody, which is an
alternative permanency placement to TPR.
See Minn. Stat. § 260C.201,
subd. 11(d). Therefore, mother’s consent
to the transfer did not automatically change the transfer from involuntary to
voluntary, and we look to the record to see if there is any support for a
conclusion that transfer of custody was voluntary and for good cause.

On appeal in this case, mother proposes several reasons
that would show “good cause” for mother’s voluntary transfer of custody, but
the only evidence in the record is that mother acknowledged that the record
before the district court established the statutory criteria for an involuntary
transfer, and she consented to the transfer to avoid termination of her
parental rights as to these children. As
the district court noted in its findings, mother took no affirmative steps to
indicate that she was voluntarily terminating her custodial rights as opposed
to admitting that statutory grounds for terminating custodial rights existed,
and mother specifically agreed that the record supported the county’s petition
for an involuntary transfer of custody.
Both at the time of the transfer and in the case now before us, the
district court made specific findings that statutory grounds for the transfer
existed, and the conditions that led to out-of-home placement of the children
had not been corrected despite reasonable efforts by the county. Because mother stipulated that the record
supported an involuntary transfer of custody and failed to assert that her
agreement constituted a voluntary transfer, we conclude that clear and
convincing evidence supports the district court’s finding that the transfer of
permanent custody of mother’s three older children was involuntary, making the
presumption of palpable unfitness in section 260C.301, subd. 1(b)(4),
applicable to her.

We take this opportunity to caution counsel and the district
courts to make a clear record to transform a petition for involuntary
permanency placement into a voluntary relinquishment of parental rights for
good cause. Without clear evidence that
an agreement relinquishing parental rights is voluntary and for good cause and
is not merely an admission of ground for an involuntary placement, the
presumption of palpable unfitness may not be avoided.

In the case before us, the county was required to file a
TPR as to mother’s rights to her child with father under Minn. Stat. §
260C.301, subd. 3(a) (2004), which provides that the county attorney shall file
a TPR petition within 30 days after a determination that a parent is the
subject of an order involuntarily transferring permanent legal and physical
custody of another child to a relative under section 260C.201, subd. 11(d)(1). And application of the presumption of
palpable unfitness relieved the county of the duty to make reasonable efforts
to reunite the child with mother. Minn. Stat. § 260.012 (a)(1)(iv)
(2004). Application of the presumption
of unfitness also shifted the burden of proof to mother to rebut the
presumption. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003)
(holding that because of the presumption of mother’s unfitness, the district
court need not establish independent reasons for termination, rather, it is
mother’s burden to establish the existence of conditions that show her fitness
to parent).

Despite her failure to present any evidence or witnesses
and her invocation of the Fifth Amendment, mother argues that the record as a
whole rebutted the presumption of her unfitness. We disagree.
There is little evidence in the record that mother has remedied any of
the conditions that led to permanent transfer of custody of the three older
children. Significantly, mother was
unable to ensure that the older children would not have unsupervised contact
with convicted child-sex-offender Chad Story, and mother did not present any plan
to protect her newborn child from potential harm by convicted
child-sex-offender father. The
presumption of palpable unfitness was not rebutted, and the district court did
not err in terminating mother’s parental rights to the child she had with father.

IV. Termination
of father’s parental rights

Father argues that the district court erroneously applied
a presumption of palpable unfitness to him.
We disagree. The record is clear
that a presumption of palpable unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4),
was not applied to father. The district
court properly relieved the county of efforts to “reunify” father and child
because father had inflicted egregious harm on another child in his care.

The statute provides for TPR if:

a child has
experienced egregious harm in a parent’s care which is of a nature, duration,
or chronicity that indicates a lack of regard for the child’s well-being, such
that a reasonable person would believe it contrary to the best interest of the
child or of any child to be in the parent’s care . . . .

Minn. Stat. §
260C.301, subd. 1(b)(6). “Egregious
harm” is defined as

the infliction
of bodily harm to a child or neglect of a child which demonstrates a grossly
inadequate ability to provide minimally adequate parental care. The egregious harm need not have occurred in
the state or in the county where a termination of parental rights action is
otherwise properly venued. Egregious
harm includes, but is not limited to . . . conduct toward a child that
constitutes criminal sexual conduct under sections 609.342 to 609.345.

Minn.
Stat. § 260C.007, subd. 14 (2004). The
statute does not require that the parent has inflicted egregious harm on his
own child, but rather, that a child has experienced egregious harm in the
parent’s care, which demonstrates the parent’s grossly inadequate ability to
provide minimally adequate parental care to any child. In re Welfare
of A.L.F., 579 N.W.2d 152, 155-56 (Minn.
App. 1998).

In this case, it is undisputed that father was convicted
of the equivalent of a violation of Minn. Stat. § 609.343, subd. 1(a) (2004),
for the act of placing his hand on the vagina of a young child. In addition, the record contains detailed
information about father’s admitted sexual acts with other children as young as
six months who were in his care and descriptions of his fantasies involving babies.

Due to father’s conviction, the county was required to
file a TPR under Minn. Stat. § 260C.301, subd. 3(a), and was relieved of
reunification efforts under Minn. Stat. § 260.012 (a)(1)(i) (2004). The county presented substantial evidence
supporting its case. Witnesses who had
worked with father extensively when he was in court-ordered sex-offender
treatment testified at length. Each
testified about father’s sexual activities with, and sexual fantasies about,
young children and babies; his or her concerns about father being around children
without adequate supervision; and the ongoing need for father to maintain a
safety plan and support system.

Father chose not to testify and presented only limited
evidence in an attempt to rebut the county’s evidence that he poses a danger to
his child. The record reflects that, to
his credit, father completed sex-offender treatment, was discharged from
probation that resulted from his criminal conviction, and has not been
reconvicted. But father conceived a
child with mother, who, at the time, was married to Story, a diagnosed
pedophile and convicted child sex offender, and had demonstrated an inability to
ensure proper supervision for the children in Story’s presence. Father has failed to make any effort to
update his safety plan to take into consideration his changed circumstances since
he left sex-offender treatment and father has failed to follow his existing safety
plan by keeping a dog despite the prohibition in the plan to having a dog, which
was designed to minimize triggering events for his propensity toward bestiality.

Father’s one witness, a psychologist who had administered
the MMPI and met with father for approximately one and a half hours, testified
that despite father’s history, she believed he could be in a position to parent, but acknowledged that spending a
lot of time alone with children could be a trigger for re-offending. This witness advised father to update his
safety plan and offered to work with him, but there is no evidence that father
has followed through with this offer and no testimony as to how the witness
proposed to provide accessible ongoing services to father.

The county’s witnesses, who had worked extensively with
father in the court-ordered sex-offender treatment program, expressed concern
about father’s failure to update his safety plan, his violation of the plan by
keeping a dog, and the import of his comment to a visitation supervisor that
his infant daughter was “batting her eyes” at him, suggesting father’s ongoing
sexualization of infants. All of these
witnesses opined that father is not able to be an appropriate parent to a young
child. One psychologist testified that
despite the fact that father has not previously been diagnosed as a pedophile,
he meets all of the DSMV-IV criteria for such a diagnosis.

In addition, the county social worker testified about her
concern that mother and father planned to live with the baby in a trailer in BigFalls,
where few support services are available for father, especially in light of
mother’s demonstrated inability to maintain boundaries between her former
sex-offender husband and her older children.
Although father’s parents also live in BigFalls,
the social worker expressed concern over their minimizing of father’s sexual
behavior and lack of understanding about how mother came to lose custody of her
older children.

The record fully supports the district court’s finding
that father “poses a serious threat to the physical and sexual safety of this
child and will continue to pose such a threat into the undetermined future and
that [mother] is incapable of providing the necessary supervision and care to
assure the safety of this child around [father].” The record also supports the district court’s
explicit findings that father inflicted egregious harm on other children and is
palpably unfit to parent this child, independent grounds that support the
determination to terminate father’s parental rights.

D E C I S I O N

This
case was properly venued in KoochichingCounty. Because mother failed to transform the petition
for involuntary permanent placement of her three older children to a voluntary placement,
and the district court properly applied a presumption of palpable unfitness to
mother. Mother failed to rebut the
presumption of palpable unfitness, and the district court did not err in
terminating her parental rights. Clear
and convincing evidence supports the district court’s findings that father inflicted
egregious harm on another child and is palpably unfit to parent, warranting
termination of his parental rights.

Affirmed.

[1]Two of these children were fathered by mother’s
husband, Chad Story, a convicted child sex offender, who also agreed to the
custody transfer. One child was fathered
by Matthew Schrum, also a convicted sex offender.

[2] The factual bases for the transfer were mother’s
failure to prevent unsupervised visits by Story and her failure to correct the
unsanitary and unlivable condition of the home despite the county’s reasonable
efforts.

[3] Mother subsequently divorced Chad Story and, after
the trial that is the subject of this appeal, married father.

[4]The district court correctly noted that the reference
in the statute to Minn. Stat.
§ 260C.201, subd. 11(e)(1) (2004) should be a reference to Minn. Stat. §
260C.201, subd. 11(d)(1) (2004). As we
have noted in an unpublished opinion, a 2001 amendment to section 260C.201
moved the contents of paragraph (e) to paragraph (d), but section 260C.301,
subd. 1(b)(4) was not amended to reflect this change. See In re
Welfare of Children of Meyer, No. C6-02-1968, 2003 WL 21061213 *3 n.1
(Minn. App.), review denied (Minn. June 25, 2003)
(concluding that intent of legislature is for section 260C.301, subd. 1(b)(4)
to reference Minn. Stat. § 260C.201, subd. 11(d)(1)).

[5]W.L.P.
involved TPR, so the petition referred to in that case was a termination
petition. 678 N.W.2d at 706. The presumption also applies, however, to a
transfer of custody. In the case
involving mother’s other children, the county petitioned for TPR and, in the
alternative, permanent transfer of custody.
Mother agreed to transfer of custody to avoid TPR.